The U.S. Supreme Court has agreed to hear the appeal of a death-row inmate whose trial counsel said during a summation that he couldn’t quarrel with the jury’s decision to find his client eligible for a death sentence.

The court limited review to a procedural issue: whether the claim was barred because lawyers for the defendant failed to take proper steps to raise the issue on appeal.

The defendant, Robert Mitchell Jennings, was convicted of shooting and killing a Houston police officer in July 1988 as the officer was in the process of arresting the owner of an adult book store. Jennings intended to rob the store, so he shot the officer and robbed the store owners, according to the New Orleans-based 5th U.S. Circuit Court of Appeals, which upheld his conviction. Jennings told his getaway driver what he had done, according to the cert petition. The driver shot Jennings, who dove out of the car window and ran away. Jennings was arrested at the hospital where he was seeking treatment for a gunshot wound to his hand.

A federal judge had granted habeas relief because Jennings’ trial lawyers failed to present evidence about Jennings’ mental impairment and disadvantaged background during the sentencing phase of his trial. Tests had found brain abnormalities, and a psychologist testified that Jennings’ emotional control is less than that of an unimpaired person. Habeas evidence also revealed that Jennings was conceived as a result of a rape and his mother often told Jennings she did not want him.

The judge ruled against Jennings, however, on his third ineffective-assistance issue regarding his trial counsel’s capital concession.

When the state appealed the decision, Jennings’ lawyers raised his trial lawyer’s summation comment as a “cross-point” in their brief in response. The New Orleans-based 5th U.S. Circuit Court of Appeals said the issue was procedurally defaulted because Jennings’ lawyers didn’t file a separate notice of appeal and a motion for a certificate of appealability.

Jennings’ lawyers argue they didn’t need to take those procedural steps because the appeals court had acquired jurisdiction over the entire claim of ineffective assistance.